The Difficulties of Proving Housing Discrimination

Next, we turn to an important legal matter that could wind up before the Supreme Court. The high court is poised to review a case that could unravel decades of housing discrimination law, involving a concept known as disparate impact. For more than four decades, lawyers and federal officials have been able to prove cases of housing discrimination by showing that a policy or a practice disproportionately harmed minorities, even if they can't prove that the practices were motivated by racism.

Now, supporters say that this is a crucial tool in an area where people are too sophisticated to openly admit that they want to discriminate against a group of people, but critics say it just isn't fair to punish people for a result when you can't prove there was the intent to discriminate.

Nikole Hannah-Jones has been writing about housing discrimination for some time now. And she publishes a piece about this issue in ProPublica today, and she's with us now.

Welcome. Thanks so much for joining us.

NIKOLE HANNAH-JONES: Thank you for having me.

MARTIN: Now, your piece makes the point that this has been the law for some 40 years now. So why is this - or, rather, let me say that this legal principle has been accepted by the courts for more than 40 years now. So why is this coming to the forefront now?

HANNAH-JONES: Well, it's interesting. Two years ago, the Supreme Court agreed to take on a case involving this principle. While it's been accepted by courts - every appellate court that's taken the issue up - it still has been a very controversial principle. And last year, the Supreme Court decided that it was going to possibly take on a disparate impact case.

MARTIN: Could you explain or give an example of a case where this principle was used? And I'm thinking about that Countrywide case. And explain why it is...

HANNAH-JONES: OK.

MARTIN: ...that civil rights lawyers and advocates think this is such an important tool.

HANNAH-JONES: So there are basically two means of fighting discrimination. One is showing that a person or a business intentionally discriminated against an individual or a group. The problem is that type of discrimination has been illegal for 45 years. So those who want to - who discriminate typically want to avoid detection, making it extremely difficult to prove intent to discriminate.

So civil rights groups and the government have been using disparate impact and relying heavily on disparate impact, really, for the last 40 years because disparate impact is not concerned with intent. It's concerned with results. Do the results of policies or practices end up being discriminatory?

And so the Countrywide case - this was a case where the Department of Justice found that Countrywide - which is, of course, a now-defunct bank - had discriminated against African-American and Latinos, that they were much more likely to give African-American and Latinos worse rates and loan terms, even though they had the same credit profile as white borrowers. And they were also far more likely to steer African-American and Latinos into subprime loans than white borrowers with the same credit profile.

And so there was obviously - there was no smoking gun memo from Countrywide saying that they intended to discriminate, but the results were discriminatory. And because Countrywide could not show a legitimate business practice that explained those results, the Obama administration was able to bring what, at the time, ended up being the largest residential fair housing settlement in history.

MARTIN: I'm speaking with Nikole Hannah-Jones. She's written about major changes that could happen in housing discrimination law for a piece for ProPublica. That piece is published today. So what are the arguments against it? I mean, surely, nobody is saying that we should be free to discriminate on the basis of race or disability or family status if I want to. Or are people making that argument?

HANNAH-JONES: No. The first argument is that the Fair Housing Act passed in 1968 did not explicitly mention disparate impact, and that it only allows enforcement of intentional discrimination. Now, former Vice President Walter Mondale, who helped draft better legislation, disagrees. He says that the disparate impact standard is allowed under the act, and proponents also argue that disparate impact is simply unfair. They say that, if there's no intention to discriminate and if the government can't show an intention to discriminate, then they shouldn't be held liable just because of statistically different results.

MARTIN: But one other argument I would imagine that they're making is that if HUD - the Housing and Urban Development Department - wanted to pass a regulation putting this type of legal strategy sort of into law, or codifying it, why haven't they done so already?

HANNAH-JONES: Well, that's a good question. One of the reasons is because it's pretty much been settled law. For 40 years, every court has said that this is the case. But advocates also say that they don't really understand why HUD has taken so long to pass this regulation. And it's very important now, because the Supreme Court tends to defer to an agency's interpretation of the law and agency regulation. So without a regulation, the fear is that the Supreme Court will strike down disparate impact.

MARTIN: So what are the people who watch this closely saying? Are they saying that they have the high expectation that the court will want to take this up, and what will happen if they do?

HANNAH-JONES: Right. So being that the Supreme Court did agree to take a disparate impact two years ago - a disparate impact case two years ago, ultimately the parties in that case withdrew the case. And now the Supreme Court has shown that it has some interest in another disparate impact and that most people believe that there is interest in taking up this case and that the conservative majority on the Supreme Court will be interested in striking down disparate impact, because usually, according to the scholars that I've interviewed, the Supreme Court does not take on a case if there's been no controversy in the appellate courts, which is the case of disparate impact. So the very fact that they're showing interest would lead some to believe that they have an interest in striking it down.

MARTIN: And if they do, what then?

HANNAH-JONES: Well, according to advocates - civil rights advocates, they say it would be devastating to fair housing enforcement. Walter Mondale, again, who helped draft the legislation, said it would ruin the act. Other fair housing scholars say it would gut the act because you simply - in this day and age, if you have to prove discriminatory intent, it's going to limit vastly the amount of discrimination cases that can be brought.

MARTIN: Nikole Hannah-Jones writes about housing discrimination law in a piece that ProPublica is publishing today. It's called "How the Supreme Court Could Scuttle Critical Fair Housing Rule." Nikole, you've given us a lot to think about and we will want to hear from advocates on both sides of the issue as the court and HUD revisit this law in the coming months. So Nikole Hannah-Jones joined us from her office in New York.

Thank you so much for speaking with us.

HANNAH-JONES: Thank you for having me. Transcript provided by NPR, Copyright NPR.